Delhi District Court
Mrs. Krishna Khanna vs Pritam Lal Bakshi on 20 July, 2016
IN THE COURT OF MS. MANJUSHA WADHWA,
ADJ08, (WEST), THC, DELHI.
SUIT NO. 613049/2016
Mrs. Krishna Khanna,
W/o Shri Ranjit Khanna,
R/o J202, Rajouri Garden (Back Portion),
New Delhi110 027 ........Plaintiff/counter claimant
Vs.
Pritam Lal Bakshi,
S/o Late Shri Parshotam Lal Bakshi,
Resident of 45 Dundas Street, Edinburgh,
Scotland, EH3 6RS through his
duly constituted attorney
Mrs. Susan Bakshi ......... Defendant
Date of Filing : 28.08.2010
Date of Judgment : 20.07.2016
JUDGEMENT :
1.This is a counter claim filed in suit for possession and recovery of mesne profits/damages (being CS No. 609980/16 titled as Pritam Lal Bakshi Vs. Ms. Krishna Khanna) claiming that plaintiff be declared as absolute owner of the property with consequential relief of part possession of the property as shown in red colour in the site plan.
2. It is noted that counter claimant has referred to Sh. Pritam Lal Bakshi in the counter claim as 'plaintiff' & 'Ms. Krishna Khanna as 'defendant' though Pritam Lal Bakshi should have been referred as 'defendant' and Ms. Krishna Khanna should have been referred as 'plaintiff'. Ld. Counsel for the counter claimant submitted that in the counter claim, he has inadvertently given the description of the parties as per the memo of parties filed in aforesaid CS No. 609980/2016 and accordingly, "plaintiff"
CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.1 of 19 be read as "defendant" and "defendant" be read as "plaintiff" in the counter claim. It appears that the said error has crept in the pleadings as the plaintiff has filed the counter claim in the aforesaid suit and referred the parties as per the memo of parties filed in the aforesaid suit. So, this court is ignoring the defect of description of parties in the counterclaim and is referring to parties as they ought to have been referred in the counter claim.
3. Brief facts as stated in the counter claim are that the deceased mother of the counter claimant, Smt. Vidhyawanti purchased a property bearing No. J202, Rajouri Garden, New Delhi 110027 admeasuring 303 sq. yards (hereinafter referred to as "suit property") in the year 1977 for a sale consideration of Rs. 1,50,000/. It is pleaded that the sale consideration was paid by her from her savings as well as by selling her ornaments and at the time of purchase of the suit property, Pritam Lal Bakshi, being brother of Vidyawanti was also with her. It is also averred that Vidyawanti was illiterate and she was having dispute with her husband and as per the advice of the defendant, Sh Pritam Lal Bakshi, the sale deed was got executed in his name. However, it was assured by him that his name would be on papers but actual owner of the property would be Vidyawanti.
4. It is further averred in the counter claim that late Smt Vidyawanti started residing in the suit property with her children including the plaintiff / counter claimant and she enjoyed the possession of the entire property. In 1988, when Benami Transaction Prohibition Act, 1988 was enacted, Sh. Pritam Lal Bakshi started to claim himself as actual owner of the property. In the month of November, 1988, Sh. Pritam Lal Bakshi being brother telephonically misbehaved with the mother of the plaintiff / counter claimant and warned her either to vacate the suit property or to face the consequences but the deceased mother of the plaintiff asserted herself to be the actual owner as she had paid the sale consideration and defedant could not dispossess her CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.2 of 19 from the suit property. In between 2000 to 2003 Ms. Shashi, first wife of the defendant came to India and picked up quarrel with the mother of the counter claimant and rendered threat to her mother, Late Ms. Vidyawanti for vacating the suit property or to face consequences.
5. It is further averred that late Smt. Vidywanti died on 19.12.07 and Sh. Pritam Lal Bakshi alongwith his wife Shashi and two sons came to India on 24.12.07 i.e to attend Kriya Ceremony of Late Ms. Vidyawanti and they rendered threat to the counter claimant for vacating the suit property and thereafter, returned to U.K in the month of January, 2008. On 19.03.10, Smt. Susain, second wife of the defendant, who is also his attorney came to India alongwith his sons and took possession of the front half portion of the suit property with the help of Gundas and local police. Attorney of the defendant and her sons also tried to dispossess the counter claimant even from the other half rear portion and thus, plaintiff was having no option but to file suit for permanent injunction which was disposed of on 15.05.10 with the direction to the parties to maintain status quo regarding the possession of the suit property.
6. It is further averred that the plaintiff / counter claimant has inherited all legal rights of her mother after her death and as such, is owner of suit property by way of application of principle of law of adverse possession and Sh. Pritam Lal Bakshi has no legal right of claiming himself the owner of the suit property on the basis of sale deed dated 17.01.1977. Accordingly, present counter claim was filed claiming the relief that decree of declaration be passed in favour of the plaintiff / counter claimant and against the defendant, Sh. Pritam Lal Bakshi, whereby declaring her as the absolute owner of the suit property with consequential relief of part possession of the suit property as shown in red colour in the site plan filed filed alongwith the counter claim. Relief of damages @ Rs.20,000/ was also claimed till the vacation of the CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.3 of 19 portion of the property as shown in the red colour in the site plan.
7. Written statement was filed to the counter claim by Sh. Pritam Lal Bakshi, wherein it is denied that sale consideration of Rs.1,50,000/ was paid by late Smt. Vidyawanti. It is averred that Sh. Pritam Lal Bakshi is the owner of the suit property and he had been requesting his sister time and again to vacate the portion of the property, which was in her occupation. It was denied in the written statement that in the first week of November, 1988 Sh. Pritam Lal Bakshi telephonically misbehaved with Smt. Vidyawanti. It is further pleaded that possession of front portion of suit property was also with Sh. Pritam Lal Bakshi and Smt. Susan Bakshi never took over the possession of the front half of the suit property with the help of local police or with the help of gundas as alleged. It is pleaded that Smt. Vidyawanti has no right, title or interest in the suit property. It is also pleaded that admittedly the property was purchased vide sale deed dt. 17.01.1977 but no action was taken by Ms. Vidhyawanti during her lifetime and even by the plaintiff for cancellation of sale deed.
8. Replication to the written statement of counter claim was filed by Ms. Krishna Khanna, wherein the contents of counter claims were reiterated.
9. On 16.07.2016, Ld. Counsel's for the parties stated that this counter claim has not been registered separately so far. It was brought to the notice of this Court that common issues were framed in the suit as well as counter claim by Ld. Predecessor of this Court on 27.09.2012 and issue Nos. 1, 5 & 7 may be treated as issues in this counter claim and counter claim be registered separately. They also jointly stated that evidence led in the suit being "CS No. 609980/2016 titled as Pritam Lal Bakshi Vs. Krishna Khanna" may also be read as evidence in this counter claim. On 16.07.16, joint statement of Ld. Counsel for the parties was recorded to this effect. Accordingly, Ahlmad of this Court was directed to register counter claim and CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.4 of 19 separate the file of counter claim and place the order dated 16.07.2016 alongwith the statement of Ld. Counsel's for the parties recorded on 16.07.2016 and copy of evidence of the witnesses & exhibited documents in CS No. 609980/2016 in this counter claim also, after registering it separately.
10. As per the joint statement of the Ld. Counsel for the parties recorded on 16.07.2016, issues which were framed are as under:
1. Whether plaintiff is entitled to grant of decree of possession in terms of prayer para 1 of the plaint? OPP.
2. Whether the plaintiff is the owner of the subject property by adverse possession after having inherited all legal rights from her mother Late Vidyawati? OPP.
3. Whether the subject property was purchased by Late Vidyawanti benami in the name of the defendant? OPP.
4. Relief.
11. It is pertinent to note that evidence led in suit No. 609980/2016 titled as 'Pritam Lal Bakshi Vs. Krishna Khanna' will be read in this suit also for deciding the aforesaid issues. Accordingly, plaintiff's witnesses therein are plaintiff as DW1; Shri Sunita Lamba, daughter of Late Ms Vidyawanti as DW 2; Shri Ranjit Khanna, defendant's husband as DW 3 and defendant witnesses are Shri Pritam Lal Bakshi as PW 1 and Shri Tarun Chooni as PW 3. Evidence by way of affidavit of PW2, Ms. Shashi Bakshi was filed, however, she was not examined by the defendant. Defendant who is plaintiff in CS No. 609980/2016 has exhibited 25 documents, which are as:
Sl. Exhibit Details
No. Number
1. Ex. PW 1/1 Original Special Power of Attorney dated 09.04.2010.
2. Ex. PW 1/2 Original Sale deed dated 17.01.1977.
CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.5 of 19
3. Ex. PW 1/3 Original Agreement to Sell dated 23.04.1976.
4. Ex. PW 1/4 Site Plan of the suit property.
5. Ex.PW1/5 Copy of the complaint dt. 20.03.2010.
6. Ex.PW1/6 (pages 15 to 43) is the certified copy of the plaint in CS (OS)
88/2010.
7. Ex.PW1/7 Certified copy of written statement by defendants No.1 to 3
in the said proceedings.
8. Ex.PW1/8 Certified copy of the complaint dated 25.03.2010.
9. Ex.PW1/9 Certified copy of complaint dated 28.03.2010
10. Ex.PW1/10 Certified copy of the complaint dated 14.04.2010.
11. Ex.PW1/11 Complaint dated 19.04.2010.
12. Ex.PW1/12 Certified copy of complaint dated 01.05.2010.
13. Ex.PW1/13 Certified copies of the complaints both dated 01.05.2010.
14. Ex.PW1/14 Certified copies of the complaints both dated 01.05.2010.
15. Ex.PW1/15 Certified copies of the medical reports.
to
Ex.PW1/19
16. Ex.PW1/20 Certified copy of the reply to the injunction application.
17. Ex.PW1/21 List of documents with documents filed by defendants No.
(colly.) 1 to 3 in Civil Suit No.88/2010
18. Ex.PW1/22 Certified copy of the orders dated 15.05.2010, statements of
(colly.) Smt. Krishna Khanna and Smt. Susan Bakshi, both dated
15.05.2010.
19. Ex.PW1/23 Original office copy of the complaint dt. 14/17.06.2010.
20. Ex.PW1/24 Office copy of the legal notice dated 31.05.2010.
21. Ex.PW1/25 Original courier receipt
CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.6 of 19
Issue No. 3.
3. Whether the subject property was purchased by Late Vidyawanti benami in the name of the defendant? OPP.
12. Issue No. (3) is dealt first as this issue will decide whether the subject property was purchased by Late Smt. Vidyawanti, predecessor of the plaintiff, benami in the name of the defendant. Onus to prove this issue was on the plaintiff. It is the admitted case of parties that defendant is the registered owner of the suit property as per Sale deed dated 17.01.1977, Ex. PW 1/2.
13. The plaintiff however, claims that her deceased mother was real owner of the suit property as she had paid the sale consideration by selling her jewellery and other articles and it was purchased in the name of the defendant being her brother for the sake of his honour however, after the enactment of Benami Transaction Prohibition Act, 1988, Pritam Singh, defendant has become dishonest and starting causing threats to the mother of the plaintiff to vacate the suit property and after the death of Smt. Vidyawanti, the threats were rendered to the plaintiff. It is also averred that Vidyawanti was having dispute with her husband and as per the advice of Sh. Pritam Lal Bakshi, sale deed was executed in his name.
14. Ld. Counsel for the defendant submitted that plaintiff has not produced any documentary proof regarding her claim that she sold all her jewellery articles to pay the sale consideration for the suit property. Rather, plaintiff appeared in the suit No. 609980/2016 as DW1 and stated in her cross examination that her mother was housewife and she was doing some stitching work at residence. Further, sister of the plaintiff as DW2 therein has stated in her evidence that father of the plaintiff was serving in the Indian Army at a very low rank and was residing at barrack No.47, CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.7 of 19 room no. 744, Ambala.
15. The onus to prove that the defendant was benami owner of the suit property was on the plaintiff. The plaintiff has pleaded that the suit property was purchased in the name of defendant for the sake of his honour and at the same time, also pleaded that it was purchased in his name as Vidyawanti was having matrimonial disputes. Whether such plea is sustainable after the enactment of Benami Act, 1988. To decide this issue, it is relevant to peruse section 4 of the Benami (Transaction Prohibition Act, 1988) which reads as under: "Prohibition of the right to recover property held benami. -
1. No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
2. No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
3. Nothing in this section shall apply,--
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.
From the bare perusal of subsection (1) of section 4 of the Benami Transaction Prohibition Act, 1988, it is evident that the suit shall not be filed by or on behalf of a person claiming to be the real owner of the suit property against the person in whose name, the benami property is held. Further, as per subsection (2) of section 4 of the said Act, no defence based on any right in respect of any property held benami shall be raised against a person in any suit filed by him claiming to be CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.8 of 19 real owner of such property. However, sub section (3) of section 4 of the said Act provides for exceptions with respect to the property held by coparcener in a Hindu Undivided Family for the benefit of coparceners in the HUF. Similar is the case with respect to trustee and persons standing in fiduciary capacity and the property is held for the benefit of another person for whom he is trustee or towards him, he stands in a fiduciary capacity. In the instant case, pleading's of purchase of suit property in the name of the defendant being brother of the predecessor of the plaintiff, for the sake of his honour or for the reason that she was having matrimonial disputes do not meet out the requirements of section 4(3)(b) of the Benami Act.
16. Their lordships in the judgment reported as J M Kohli Vs. Madan Mohan Sahni & Anr in RFA No.207/2012 decided on 07.05.2012 by Hon'ble High Court of Delhi observed as:
"8. In a way, therefore, there may be some ostensible conflict between the provision of Section 4(3)(b) of the Benami Act and Section 7 of the same Act which repeals the provisions of the Indian Trusts Act, 1882, however, one has to read and interpret Section 4(3)(b) in a manner which is in accord with the legislative intention to bar claims against properties held as benami. The concept of trust was always inbuilt once a transaction was a benami transaction as the benamidar was the trustee for the real owner. But in spite of the concept of trust being inbuilt in benami transactions, the Benami Act provided that no rights could be asserted in a benami property by the actual/de jure owner. Putting it differently, once Sections 81, 82 and 94 of the India Trusts Act, 1882 have been repealed, they cannot be brought in from the back door, so to say, by giving the same content contained in the repealed provisions of Sections 81, 82 and 94 of the Indian Trusts Act, 1882 to Section 4(3)(b) of the Benami Act. If we give such an interpretation, the entire Benami Act will fall and it will be as if the same has not been enacted. Therefore, Section 4(3)(b) which provides that the property which is held as a trustee or in a fiduciary capacity must be interpreted in the sense that the trustee or a person who is holding the property in a fiduciary capacity has either committed a fraud and got the property title in his name or is in furtherance of law holding property in his name however in the capacity of a trustee or in fiduciary capacity, although the real owner is somebody else."
17. In CS(OS) No. 478/2004 titled as Shri Amar N. Gugnani versus Naresh Kumar Gugnani (through legal heirs) decided on 30.07.15 by Hon'ble High Court of Delhi, CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.9 of 19 their lordship observed that since the plaintiff in the plaint himself states that the property was purchased as a benami property in the name of the father, late Sh. Jai Gopal Gugnani, merely and although the plaintiff has used the expressions fiduciary relationship and trustee, yet these expressions of fiduciary relationship and trustee are not those expressions which will cause the transaction to fall under the exception of Section 4(3)(b) of the Benami Act, but these expressions are those expressions which fall under Sections 81, 82, and 94 of the Trusts Act and which have been repealed by Section 7 of the Benami Act. It was held that the suit is barred by the provision of Section 4(1) of the Benami Transactions (Prohibition) Act, 1988.
18. Considering the provision as enumerated in section 4 (1) of the benami Act in the light of the aforesaid judgments passed by Hon'ble High Court of Delhi, it is amply clear that Section 4(1) bars the filing of suit for recovery of the benami property from the benamidar and thus, places a bar on the plaintiff "pleading benami" while Section 4(2) places a bar on the defendant pleading benami after coming into force of the Act. It may also be noted that section 7 of the benami Act has repealed Section 81, 82 and 94 of the Indian Trust Act 1882.
19. Present suit has been filed after the enactment of Benami (Transaction Prohibition Act, 1988) and thus, bar of Section 4(1) of the Benami Act shall apply to the facts of the present also, in terms of judgment of the Hon'ble Apex Court reported as 1995(2)SCC 630, R. Rajgopal Reddy Vs. Padmini Chandrasekharan.
20. Looking into the pleadings of the parties and evidence led by the parties, except the bald averment that mother of the plaintiff has paid the entire sale consideration of the suit property at the time of purchase by selling her jewelery articles, no documentary evidence has been placed on record. Further, DW2 therein has stated in her cross CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.10 of 19 examination that his father was in Army at a very low rank. She admitted that her father never resided in the suit property. Plaintiff appeared as DW1 therein and deposed that her mother told her that she arranged the consideration for the property by selling her jewelery and other articles and she has not filed any proof to show that the consideration was paid by her mother. She stated that they were five siblings and her brother died in 2005 and her mother died in 2007. Per contra, defendant being registered owner of the suit property deposed in his cross examination that in the year 1976, his income was around Rs. 3,200/ pounds per week and he did not arrange money from any source in India for purchasing the suit property. He deposed that the amount was paid in the year 1976 and 1977 respectively.
21. The fact, Vidyawanti's husband was working at low rank in army; she was having matrimonial dispute with her husband; she was house wife; doing stitching work and had to look after five children, are sufficient to infer that she had no financial means to pay Rs. 1,50,000/ in 1977. Nothing has been said in the deposition of the plaintiff as DW1 therein as to source of jewellary articles and alleged jewellery's possession of worth Rs. 1,50,000/ with her deceased mother to pay sale consideration of the suit property in the year 1977. On conspectus reading of evidence led by the parties, it is evident that Late Ms. Vidyawanti was not having financial means to purchase the suit property.
22. Further, the plaintiff has not denied the execution of the sale deed in the name of the defendant. In my considered opinion, the plea of benami purchase of suit property taken by the plaintiff is not only barred as per provision of Section 4(1) of the benami Act but the plaintiff has also failed to prove that her predecessor was having financial means to pay the sale consideration of Rs. 1,50,000/ to purchase the suit property. Issue No. (3) is accordingly decided against the plaintiff & in favour of the defendant.
CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.11 of 19 Issue Nos. 1 & 2.
1. Whether plaintiff is entitled to grant of decree of possession in terms of prayer para 1 of the plaint? OPP.
2. Whether the plaintiff is the owner of the subject property by adverse possession after having inherited all legal rights from her mother Late Vidyawati? OPP.
23. Issue No. (1) & (2) are dealt together as the same kind of pleadings and evidence is required to be looked into to decide whether the plaintiff is entitled to possession of the suit property and whether the plaintiff is owner of the suit property by way of adverse possession after inheriting all legal rights from the mother. The onus to prove issue No. 1 & 2 was on the plaintiff.
24. It is the admitted case of the parties that defendant is the registered owner of the suit property and purchased the suit property vide registered sale deed dated 17.01.1977, Ex. PW1/2. I have already held that the plaintiff has failed to prove that Late Ms. Vidyawanti was the real owner and defendant was the benami owner of the suit property. I shall now consider the plea of adverse possession raised by the plaintiff in this counter claim. It is the case of the plaintiff that the defendant had asked the mother of the plaintiff to vacate the suit property in the first week of November 1988, 20002003, December 2007 as mentioned in para 4 and 5 of the written statement cumcounter claim to which the defendant has not raised any objection and the said stand of the plaintiff is admitted by the defendant in para No. 5 sub para 3 of the written submission filed in CS No. 609980/2016. It is the case of the plaintiff that mother of the plaintiff had declared her hostile possession in the year 1988 and subsequently, in the year 2002 - 2003 and December 2007. Plaintiff stepped into the shoes of her mother after her death and she maintained the hostile possession and even after the warning and threatening of the defendant given in November 1988, the suit property was not vacated and rather, she claimed herself to be the owner of the CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.12 of 19 suit property. It is the case of the plaintiff that the plaintiff has become owner of the suit property by way of adverse possession after inheriting all the legal rights from her deceased mother, who had expired on 19.12.2007.
25. Ld. counsel for the plaintiff submitted that the deceased mother of the plaintiff openly and outrightly claimed herself to be the owner of the suit property in the first week of November 1988, when the defendant on telephone misbehaved with her and warned her either to vacate the entire property or to face the consequences, but the deceased mother of the plaintiff warned the defendant that he could not do anything against her as she was the actual owner and had paid the sale consideration. It is submitted that the possession of the deceased mother of the plaintiff became hostile in the month of November 1988 and it was for the defendant to challenge or to institute the suit against the deceased mother of the plaintiff within a period of 12 years, which was not filed admittedly and thus, after the completion of 12 years of the hostile possession, the deceased mother of the plaintiff became owner of the suit property.
26. Ld. counsel for the plaintiff further contended that it is settled principal of law regarding claim of adverse possession, where there is specific and open hostile possession against the owner and owner fails to bring the suit within a period of 12 years, owner will have no right to claim the possession of the suit property. Ld. Counsel for the plaintiff has relied upon the following judgments as:
(a) Baswanthrao Since Deceased by His LRs Vs. Raj Kumar I (2010) CLT 70 decided by Karnataka High Court
(b) Parsinni (Dead) by L.Rs. & Ors. V. Sukhi & Ors. (K. Ramaswamy, J.) JT 1993 (5) S.C. 435
(c) Suraj Mal Behari Rohatgi and others Vs. Babu Ll and another AIR 1985 Delhi 95
(d) Shri Nathu Ram and Others Vs. shri Uttam Chand through LRs decided on 18.02.2011 by Hon'ble High Court of Delhi.
(e) S.A. No. 449/2003 titled as M.K. Murthy Vs. V.A.T. Palani and CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.13 of 19 others. decided on 10.02.2010 by Madras High Court.
27. Per contra, Ld. Counsel for the defendant submitted that possession of the mother of the plaintiff was permissive. Smt. VidyaWanti, elder sister of the defendant was in a distressed condition being deserted by her husband and thrown out of her matrimonial home alongwith five minor children and one amongst them being terminally ill. She was allowed to stay in one portion of the house of the defendant. She further submitted that being brother and sister, strong evidence of hostile possession has to be there. Plaintiff appeared as DW1 therein and in cross examination admitted that there are two electricity meters installed in the two portions of the suit property and both of them are in the name of the defendant. It is the case of the defendant that he had permitted Late Smt. Vidya Wanti to stay in back portion of the suit property when she came to Delhi in 1979 on account of illness of her son and since being elder sister and considering the fact that she was deserted by her husband, the defendant never asked her to vacate the property till the daughters were grown up and were capable to take care of her mother. There was no animus possidendi to claim ownership of the suit property. She has relied upon the following judgments to support her contention :
(i) Karnataka Board of Wakf vs. Government of India and Ors. (2004) 10 SCC 779.
(ii) T. Anjanappa & Ors. V. Somalingappa & Anr. [(2006) 7 SCC 570];
(iii) P.T. Munichikkanna Reddy & Ors Vs. Revamma and Ors., AIR 2007 SC 1753;
(iv) Annakili Vs. A. Vedanayagam & Ors. , AIR 2008 SC 346.
28. I may also note that Hon'ble Apex Court in the judgment reported as Mohan
Lal (Deceased) Through his LRS. vs. Mirza Abdul Gaffar & Anr 1996 SCC (1) 639 has observed as under: "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.14 of 19 latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant's claim is founded on Section 53A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
29. The ingredients of adverse possession have succinctly been stated by the Hon'ble Apex Court in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254] as:
"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found"
30. The Hon'ble Apex Court in the judgment reported as Karnataka Board of Wakf Vs. Govt. of India (2004) 10 SCC 779 has observed as:
"In the eye of law, an owner would be deemed to be in possession of a prop erty so long as there is no intrusion. Nonuse of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Ad verse possession is a hostile possession by clearly asserting hostile title in de nial of the title of true owner. It is a well settled principle that a party claim ing adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be ade quate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See :S M Karim v. Bibi Sakinal AIR 1964 SC 1254,Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus pos sidendi to hold as owner in exclusion to the actual owner are the most impor tant factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law.
Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.15 of 19 his possession has continued, and (e) his possession was open and undis turbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128)."
31. In Annakili vs A. Vedanayagam & Ors, AIR 2008 SC 346, the Hon'ble Apex Court elaborated the elements of adverse possession as:
"22. Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title."
32. Ratio of the aforesaid judgments and the judgments placed on record by the parties recite the principal that assertion of the title adverse to the title of the true owner must be clear and unequivocal and the period of limitation has to be computed from the date of actual possession and assertion of the title adverse to the title of the true owner. Keeping in mind the law laid down by the catena of aforesaid judgments, this court has considered the rival contention of the parties and the evidence led by them. Plaintiff as DW1 therein, in her cross examination deposed that matrimonial home of her mother, Vidya Wanti was in Ambala and she was also borne in Ambala. She also deposed that her mother was housewife and was doing some stitching work at residence. She has admitted in her cross examination that tax of the property is being deposited by the defendant. She further admitted in cross examination that there are CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.16 of 19 two electricity meters in the premises, which are in the name of the defendant and bill of one electricity meter is being paid by the defendant and one electricity meter is being paid by her. She further deposed that defendant had asked her to vacate suit property some time in 2002 - 2003 and thereafter, at the time of death of her mother in the year 2007. Thus, from the perusal of testimony of the plaintiff as DW1 therein, it is evident that the possession of back portion of suit property was never adverse to the title of the defendant. The meters were installed in the name of the defendant and electricity bills as well as the house tax were being paid by the defendant. The deposition of the plaintiff as DW1 therein that she was paying electricity bill of half portion of the suit property itself negates her contention that her mother, Vidyawanti was occupying the entire suit property and it was only in March 2010, she was dispossessed from front portion by attorney of the defendant. No document has been filed by the defendant to prove that the possession of the suit property was hostile to the owner. In my considered opinion, from the testimony of plaintiff herself, it is evident that the occupation of the suit property by her deceased mother, Late Ms. Vidyawanti was permissive in nature.
33. As I have already held that the possession of the subject property was permissive in nature, the question which arises now for consideration is whether at any point of time, the plaintiff & her deceased mother possessed the suit property as owner against the defendant. It is also to be kept in mind that the plea of title and adverse possession are mutually inconsistent and the latter does not begin to operate unless the former is renounced. In the instant case, the plaintiff has claimed her mother to be the real owner of the suit property and in the same breath, her claim is that she became owner by virtue of adverse possession. Plea of ownership and adverse possession are inconsistent pleas and not permissible under the law. The possession of the suit property by the plaintiff and her mother to the exclusion of the defendant with the animus to possess is not specifically pleaded and proved. It is established that mother CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.17 of 19 of the plaintiff, being sister of the defendant was allowed to stay in the suit property and the possession was permissive in nature. It is settled law that mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. The question has been considered at some length in T. Anjanappa and Others v. Somalingappa and Another [(2006) 7 SCC 570], wherein it was observed as:
"The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable"
34. In the instant case, plaintiff claimed that Late Ms. Vidyawanti was the real owner and thus, there cannot be plea of adverse possession simultaneously by Late Ms. Vidyawanti, the predecessor of the plaintiff. The plea of adverse possession is not sustainable against the defendant in the facts of the present case. Simply, the fact that the defendant had asked Vidyawanti to vacate the suit property in 1988 and Vidyawanti refused to vacate the suit property does not mean that she was claiming herself to be the owner. Plaintiff for the first time pleaded her hostile claim of ownership by filing suit for permanent injunction on 29.03.2010 against the second wife and children of the defendant. In the said suit, the plaintiff has claimed that her deceased mother was real owner in possession of the suit property.
35. Admittedly, the plaintiff and her predecessor has been in possession of back portion of the suit property for continuous 12 years before the filing of suit. However, the plaintiff has failed to prove such possession coupled with the hostile claim of ownership of the suit property against the defendant and therefore, I am of view that the plaintiff has failed to lead such evidence which on preponderance of probabilities CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.18 of 19 would establish to the satisfaction of this Court a continuous hostile claim of ownership for a period of 12 years to sustain her claim of adverse possession of the suit property.
36. I, therefore, hold that the plaintiff has failed to prove her predecessor claim of ownership by adverse possession of the suit property as the plaintiff has failed to lead such evidence before the Court which would satisfy the judicial conscience of this Court on preponderance of probabilities that the plaintiff had been in continuous possession by asserting a hostile claim of title for 12 years period prior to filing of the present suit.
In view of the discussion held hereinabove, issue No. 2 is decided against the plaintiff and in favour of the defendant.
37. With respect to the issue No. 1 as to whether plaintiff is entitled to possession of the suit property, it is noted that registered sale deed dated 17.01.1977 i.e. Ex. PW 1/2 as well as agreement to sell dated Ex. PW 1/3 in the name of the defendant are not disputed by the plaintiff. Issue Nos. 2 & 3 have already been held against the plaintiff. In view of the above, plaintiff is not entitled to possession of the suit property. Issue No. 1 is thus, decided against the plaintiff and in favour of the defendant.
Issue No. 4. Relief.
38. As held above, issue Nos. 1, 2 & 3 are decided against the plaintiff and in favour of the defendant. Consequently, suit of the plaintiff is dismissed with no order as to cost. Decree sheet be prepared accordingly. File be consigned to the Record Room.
Announced in the open court on the 20th day of July, 2016.
(MANJUSHA WADHWA) ADJ08, WEST DISTRICT 20.07.2016/DELHI CS No. 613049/2016 Krishna Khanna Vs. Pritam Lal Bakshi Page No.19 of 19